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Domestic Violence - Gun Permits Colonna V Pennsville





       DOCKET NO.  A-3742-08T1








Submitted April 28, 2010 - Decided

Before Judges Graves and J. N. Harris.

On appeal from the Superior Court of New

Jersey, Law Division, Salem County, Docket

No. L-23-07.

Glen L. Schemanski, attorney for appellant.

Powell, Birchmeier & Powell, attorneys for

respondents (James R. Birchmeier, on the



 Plaintiff appeals from the dismissal of his complaint

against defendants that alleged the negligent deprivation of his

liberty, property, and firearms purchaser identification card by

May 19, 2010



local government.1 We find no basis to disturb the grant of

summary judgment in favor of defendants and therefore we affirm.


 We recite the facts most indulgently in favor of plaintiff

because summary judgment was granted against him in the Law

Division. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,

523 (1995); Pote v. City of Atlantic City, 411 N.J. Super. 354,

356 (App. Div. 2010).

On January 3, 2005, a representative of defendant

Pennsville Township Police Department (Department) received

information from plaintiffs girlfriend, Tracy Neciles,2 that

plaintiff had told her that he was going to kill himself and

that he also had waved a wooden-handled handgun in the air in

her presence. At least six police officers were dispatched to

plaintiffs residence in response to this information. At the

scene, plaintiff calmly exited his dwelling——empty-handed——at


 Although the complaint is couched in constitutional terms of

alleged deprivations of a liberty interest, property rights, and

civil rights, plaintiff seeks no redress pursuant to federal or

state civil rights acts. See 42 U.S.C.A. § 1983; N.J.S.A. 10:6-1

to -2. Instead, plaintiff firmly plants his common law tort

cause of action within the embrace of the New Jersey Tort Claims

Act (TCA), N.J.S.A. 59:1-1 to 12-3.


 The record contains differing references to the surname of

plaintiffs girlfriend. In plaintiffs deposition, he spelled

her name for the court reporter as "Tracy Neciles, N-E-C-I-L-E-

S." In the spirit of giving plaintiff the benefit of all

reasonable inferences, we adopt plaintiffs spelling.



the request of a police officer, and thereafter fully cooperated

with law enforcement officials.

 In his deposition, plaintiff denied waving a firearm, but

conceded that he and Neciles had argued, and that he uttered

words indicating that he was going to kill himself,3 or at least

gave that impression to Neciles:

Q. Do you ever recall threatening that you

were going to kill yourself during the

course of that argument?

A. Yeah. I think my words were to the effect

that she was so vehement. I said Ive had

it, Im getting out of here, words to that

effect, Ive had it Im getting out and I

meant it. I was tired of fighting with her

all the time over everything and I was the

only guy there trying to help her out. I was

at my saturation point with her at that

moment and I said Im out of here, leave me

alone, Im leaving, which never


Q. And in addition to what youve told me

about what you said, do you recall saying

anything about harming Tracy, harming

yourself, or harming anyone else?

A. I probably——Im sure——I probably did use

my poor grammatical example of, you know,

Im going to jump out the window, so to

speak, leave me alone. Words to that effect.

I think thats why she went to the police.

She actually thought I was going to do

something stupid.


 The police report indicated that plaintiff told an officer that

"he did tell Ms. [Neciles] that he was going to die in her bed,

but did not really mean it."



 After plaintiff surrendered to police officers at his home,

he was not arrested, handcuffed, or charged with an offense.

Instead,  plaintiff was transported by police officers directly

to Memorial Hospital of Salem County for what plaintiff

described as "some kind of a psychological evaluation." Several

hours later, after a mental health screening assessment had been

administered to plaintiff, he was released. Although ultimately

diagnosed with a major depressive disorder and referred for

counseling, plaintiff was not found to be a danger to himself or

to others. He called his girlfriend, who obligingly picked him

up from the facility to drive him home. During this time, the

police seized plaintiffs three firearms and firearms purchaser

identification card that had remained in his dwelling.4

 This incident was not plaintiffs first encounter with the

Pennsville police. In April 2004, plaintiff uttered "derogatory

comments without intent" that brought two police officers to his


Yeah. It was along the lines of Ive had it,

Im ready to jump off a building or jump off

a cliff. Words to that effect. It was mostly

in anger.

After being interviewed over the telephone——presumably by a

mental health screening service——plaintiff was advised that the


 Presumably, this seizure was pursuant to the Prevention of

Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35; N.J.S.A.




police would call him back after a few hours and "if everything

is okay . . . that was pretty much the end of it." Indeed,

plaintiff was not arrested, not charged with an offense, and not

transported to a psychiatric facility for a mental health

examination. On this prior occasion, plaintiffs weapons and

firearms purchaser identification card were not seized.

 Neciles ultimately declined to file a complaint against

plaintiff pursuant to the PDVA for the more recent 2005

incident. Nevertheless, the police treated the matter as falling

within the PDVAs framework and transferred plaintiffs firearms

to the Salem County Prosecutors Office (the Prosecutors

Office) in February 2005 pursuant to N.J.S.A. 2C:25-21(d)(2).

After several unsuccessful informal efforts to retrieve his

weapons and firearms identification card from the Department and

the Prosecutors Office directly, plaintiff turned to the


 On May 27, 2005, notwithstanding the absence of any actions

then pending in either the Family or Criminal Parts, plaintiff

filed a motion——without a docket number——in the Criminal Part

for "the return of weapons and firearms [purchaser]



identification card seized on Jan[uary] 3, 2005."5 On July 25,

2005, an order was entered requiring that plaintiffs firearms

and firearms purchaser identification card be returned to him.

 On December 29, 2006, just five days shy of the second

anniversary of the police encounter at the root of this appeal,

plaintiff filed a three-count civil action that outlined his

grievances with defendants Department and Township of

Pennsville. The complaint did not seek remedies against any

individual police officers, the Prosecutors Office, or the

County of Salem. After extensive discovery, defendants moved for

summary judgment, claiming good faith immunity in the handling

of plaintiff individually, as well as the seizure of plaintiffs

firearms and firearms purchaser identification card.

 The Law Division granted defendants motion, concluding

that "no reasonable juror could find in favor of the plaintiff"

on plaintiffs claim of the violation of his personal liberty by

the police on January 3, 2005. The court noted that the TCA,

N.J.S.A. 59:3-3, grants good faith immunity to public employees


 We believe that in the absence of an action under the PDVA

(which would have required a motion in the Family Part) or the

pendency of a revocation proceeding under N.J.S.A. 2C:58-3(f)

(which would have required the stewardship of the Superior Court

in the county where the firearms purchaser identification card

was issued) there was no clear basis for the Criminal Part to

consider plaintiffs motion. Rather, a civil replevin action,

pursuant to N.J.S.A. 2B:50-1 to -5 and Rule 4:61-1, was the more

appropriate procedural vehicle in this case.



and additionally that "there are no facts to support a finding

of bad faith on the part of the officers in investigating

[plaintiff]——the allegations that [plaintiff] was going to

commit suicide and having him scree[ned] to determine whether he

was——he posed a danger to himself or others." We agree.

 The Law Division disposed of the property rights claim in

the same manner. That is, the court concluded that the seizure

and temporary retention of the weapons and firearms purchaser

identification card were nothing more than good faith mistakes

by the police who believed that the matter fell within the

purview of the PDVA, and that they were therefore entitled to

TCA immunity. Relying upon what it referred to as the community

caretaking function of police officers, the Law Division held

that because the responding police officers were acting "under

the need to protect [plaintiffs] and others safety," the

defendants were not liable to plaintiff. Again, we agree.

 On appeal, plaintiff raises one point for our







JANUARY 2, 2005.



We are satisfied that plaintiffs argument lacks sufficient

merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E). Nevertheless, we add the following brief comments.


 We use the same standard as the Law Division to conduct our

de novo review of the motion for summary judgment.  Chance v.

McCann, 405 N.J. Super. 547, 563 (App. Div. 2009).  Thus, we

must consider, as the trial court did, "whether the evidence

presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail

as a matter of law."  Liberty Surplus Ins. Corp. v. Nowell

Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill,

supra, 142 N.J. at 536).

Police officers will not be held liable for their actions

if they act "in good faith in the execution or enforcement of

any law."  N.J.S.A. 59:3-3.  This immunity also applies to the

Department and to the Township. N.J.S.A. 59:2-2(b)("A public

entity is not liable for an injury from an act or omission of a

public employee where the public employee is not liable.");

Fielder v. Stonack, 141 N.J. 101, 118 (1995). 

To pierce the shield of good faith immunity, "a plaintiff

must prove more than ordinary negligence." Dunlea v. Twp. of

Belleville, 349 N.J. Super. 506, 511 (App. Div.), certif.

denied, 174 N.J. 189 (2002). Rather, a plaintiff must prove



recklessness. Id. at 512. "Recklessness, unlike negligence,

requires a conscious choice of a course of action with knowledge

or a reason to know that it will create a serious danger to

others."  Id. at 513-14 (quoting Schick v. Ferolito, 167 N.J.

7, 19-20 (2001)). Recklessness is characterized as "an extreme

departure from ordinary care, in a situation in which a high

degree of danger is apparent."  Id. at 513. In distinguishing

between the elements of recklessness and negligence, the latter

"may consist of an intentional act done with knowledge that it

creates a risk of danger to others, but recklessness requires a

substantially higher risk. The quantum of the risk is the

important factor."  Schick, supra, 167 N.J. at 19-20.

The evidence in this case does not establish that

defendants or their police officer employees acted recklessly at

any time.  Rather, the evidence clearly shows that on January 3,

2005, police officers were performing a police activity under

emergent circumstances requiring quick action to protect the

public safety, and pursuant to a reasonable and good faith

belief that plaintiff might harm or kill himself. Moreover, the



immunity provisions of N.J.S.A. 30:4-27.76 provide further

justification for the transportation of plaintiff to the

hospitals screening service to ensure that he received an

adequate mental health assessment. Accordingly, defendants are

entitled to good faith immunity for any alleged liberty


In like vein, we find immunity for the initial seizure of

plaintiffs weapons together with his firearms purchaser

identification card, as well as the subsequent transfer of those

same firearms to the Prosecutors Office and later refusal

(without a court order) to return the property. The community

caretaking function of the police justified the initial police

intrusion into plaintiffs home.  See Cady v. Dombrowski, 413

U.S. 433, 439-48, 93 S. Ct. 2523, 2527-31, 37 L. Ed. 2d 706,

713-18 (1973); State v. Bogan, 200 N.J. 61, 73-75 (2009); State

v. Diloreto, 180 N.J. 264, 276 (2004); State v. Garbin, 325 N.J.

Super. 521, 526-27 (App. Div. 1999), certif. denied, 164 N.J.

560 (2000). These attributes of good faith are fortified by the

police officers perception that they were acting——albeit

erroneously——under the auspices of the PDVA. We are unpersuaded


 "A law enforcement officer, screening service or short-term

care facility designated staff person or their respective

employers, acting in good faith pursuant to this act who takes

reasonable steps to assess, take custody of, detain or transport

an individual for the purposes of mental health assessment or

treatment is immune from civil and criminal liability." Id.



by plaintiffs argument that defendants mere imperfect fidelity

to the PDVAs procedures regarding handling of seized firearms

somehow excludes them from statutory immunity pursuant to the



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